A New York Family Lawyer sais this case reveals the troubling state of public housing policy in the City of New York and the lack of available counsel for low-income tenants seeking to avoid homelessness. A Bronx Family Lawyer said that, petitioner commenced this Article 78 proceeding challenging the denial of her application for a lease in her own name as the “remaining family member” of the deceased tenant of record, her husband. Respondent New York City Housing Authority (NYCHA) cross-moved to dismiss the proceeding as barred by the statute of limitations. Following the initial conference with the Court, NYCHA also filed a Verified Answer addressing the merits of the petition. Thereafter, the Court held repeated conferences in an effort to resolve the matter so that petitioner could continue to reside in the apartment, along with her adult daughter who is deaf and disabled in other respects, and her two teenage granddaughters, who are the daughters of the former. No resolution having been reached, this Court is proceeding to determine the narrow issue presented; that is, whether the decision by the Hearing Officer upholding NYCHA’s denial of petitioner’s request for a lease was arbitrary and capricious. However, this decision is not intended to in any way tie the hands of Judge who is being presented with far broader issues in the related holdover proceeding pending before him in the Bronx Housing Court.
A New York Custody Lawyer said that, in or about the year 2000, petitioner’s husband became the tenant of record in apartment 11G, a four-room apartment in Sedgwick Houses located at 156 West 174th Street in the Bronx. The records confirm that an adult daughter of petitioner’s husband also resided in the apartment until she moved out some time in 2005. Whereas the husband had listed the adult daughter’s income on his annual income affidavit filed every spring in the early years of his tenancy, he did not list her in 2006 or 2007. On his April 5, 2007 income affidavit, the father listed his name and the name of his wife. For some reason, the surname was crossed off the section of the affidavit entitled “Persons Living in Apartment.” However, petitioner signed the form as “co-lessee” and included her annual income of $32,000 for work as a home attendant. Neither of those entries was crossed out. The NYCHA Interview Records contain no entries confirming when petitioner moved into the apartment and what communications NYCHA had with the tenant upon receipt of the income affidavit. Indeed, the file contains no entries whatsoever written by a Housing Assistant during the critical three-year period from February 17, 2004 through May 4, 2007, after which the tenant passed away.
A Westchester County Family Lawyer said that, according to NYCHA records, the husband submitted a formal written request to NYCHA on or about May 4, 2007, for his wife to permanently join the household. The husband explained that he was ill and wanted his wife to live in the apartment and care for him. On May 9, 2007, NYCHA approved the request. On May 11, 2007, the husband passed away. Petitioner then asked NYCHA for permission to stay in the apartment and obtain a lease in her own name, and she followed all the required procedures to pursue that request. The Housing Manager denied the request, and the Borough Manager agreed, finding that she was not eligible for a lease in her own name because she had not been living in the apartment with the husband with NYCHA’s permission for the requisite one-year period before the tenant of record died.
A Westchester County Custody Lawyer said that, on March 4, 2008, Hearing Officer Pannell rendered her written decision. Thus, while NYCHA’s knowledge of a remaining family member’s occupancy is legally significant, even absent written permission, no evidence was offered, and no questions were asked, specifically addressing that point. Instead, NYCHA counsel scrupulously avoided the issue entirely. Based on these facts, the Court perceived a good faith basis for a request by the adult daughter to obtain a lease as a remaining family member of the tenant of record, as she had been residing with the tenant (her father) for well over a year before his death with the knowledge of NYCHA’s employee and the implicit approval of NYCHA. As the family had been unable to retain counsel, he reluctantly agreed to file such a request with NYCHA. However, the Housing Assistant refused to accept it, claiming it was untimely, and NYCHA counsel refused to take any steps to allow the lease request to be filed. Notwithstanding the fact that petitioner would have an absolute right to remain in the apartment with her daughter should she obtain a lease in her own name, NYCHA counsel adamantly asserted that petitioner’s predicament was wholly separate from that of her daughter, and she urged the Court to determine this proceeding without regard to the still-pending holdover proceeding or the possibility that her daughter could obtain a lease to secure the continued occupancy of the entire family. The determination follows.
The issue in this case is whether petitioner’s action is barred by the statute of limitations.
The threshold issue is the timeliness issue raised by NYCHA’s cross-motion to dismiss. Pursuant to CPLR §217(1), a party must commence an Article 78 proceeding “within four months of the date after the determination to be reviewed becomes final and binding upon the petitioner.” As confirmed by the Court of Appeals in a 1983 case decision, the “four-month Statute of Limitations did not begin to run until the petitioner has received notice of the “agency’s determination.”
In the case at bar, the Hearing Officer’s determination is dated March 4, 2008. It was accompanied by a Notice of Review which stated that the matter was “under review by the members of the New York City Housing Authority.” NYCHA issued a Determination of Status approving the Hearing Officer’s decision on March 19, 2008. The March 19 document is the key document for purposes of the statute of limitations, as the determination was not final until that document was issued and received.
NYCHA’s cross-motion is supported by two affidavits. The first is from a NYCHA employee whose job was to prepare the Determination of Status for mailing to petitioner. Having no independent recollection, the NYCHA employee attested to her “regular business practice” of placing a copy of the Determination in a “window” envelope, folded so that the address was visible through the window. She then customarily placed the envelope in an outgoing mail box in the office for pick up by another employee. She further attested that she had made a computer entry confirming that she had placed the petitioner envelope with the Determination in the outgoing mail box and that she had not received it back in the mail. No computer printout is attached